# C_2007199EN.01001403.xml

| 25.8.2007 | EN | Official Journal of the European Union | C 199/14 |
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25.8.2007

EN

Official Journal of the European Union

C 199/14

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Action brought on 5 April 2007 — Commission of the European Communities v Republic of Poland

(Case C-193/07)

(2007/C 199/25)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and K. Herrmann, acting as Agents)

Applicant:

Defendant: Republic of Poland

Defendant:

Form of order sought

| — | Declare that, by failing to take appropriate measures to avoid deterioration in the habitats and significant disturbance to the species in the SPA Puszcza Augustowska, PLB 200002, in the context of the approval procedures for the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has failed to fulfil its obligations under Article 6(2) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (1); |
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Declare that, by failing to take appropriate measures to avoid deterioration in the habitats and significant disturbance to the species in the SPA Puszcza Augustowska, PLB 200002, in the context of the approval procedures for the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has failed to fulfil its obligations under Article 6(2) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (1);

Puszcza Augustowska

1

| — | Declare that, by failing to submit the project for the bypass around Wasilków, a town in the north-east of its territory, to due assessment of the impact of the project on the SPA Puszcza Knyszyńska, PLB 200003, and by approving that project despite its adverse impact on the integrity of the area in question and by starting work on that project, the Republic of Poland has failed to fulfil its obligations under Article 6(3) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; |
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Declare that, by failing to submit the project for the bypass around Wasilków, a town in the north-east of its territory, to due assessment of the impact of the project on the SPA Puszcza Knyszyńska, PLB 200003, and by approving that project despite its adverse impact on the integrity of the area in question and by starting work on that project, the Republic of Poland has failed to fulfil its obligations under Article 6(3) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora;

Puszcza Knyszyńska

| — | Declare that, by proposing to carry out an afforestation project as a compensatory measure for the loss of the Puszcza Augustowska area, PLB 200002, over the area which is to be proposed as a site of Community [Importance] in accordance with Directive 92/43/EEC (‘Pojezierze Sejneńskie’, PLH 200007, of a total surface area of 7 456,9 ha), the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz; |
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Declare that, by proposing to carry out an afforestation project as a compensatory measure for the loss of the Puszcza Augustowska area, PLB 200002, over the area which is to be proposed as a site of Community [Importance] in accordance with Directive 92/43/EEC (‘Pojezierze Sejneńskie’, PLH 200007, of a total surface area of 7 456,9 ha), the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz;

Puszcza Augustowska

Pojezierze Sejneńskie

Dragaggi

Bund Naturschutz

| — | Declare that, by approving the destruction of the habitat Puszcza Augustowska inside an area which is to be proposed as a Site of Community Importance in accordance with Directive 92/43/EEC (Ostoja Augustowska PLH 200005) in the context of the construction of the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in the Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz; |
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Declare that, by approving the destruction of the habitat Puszcza Augustowska inside an area which is to be proposed as a Site of Community Importance in accordance with Directive 92/43/EEC (Ostoja Augustowska PLH 200005) in the context of the construction of the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in the Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz;

Puszcza Augustowska

Ostoja Augustowska

Dragaggi

Bund Naturschutz

| — | order the Republic of Poland to pay the costs. |
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order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The present action concerns incorrect application of Directives 79/409/EEC (2) (Birds) and 92/43/EEC (Habitats). The Habitats Directive aims to create a coherent European ecological network in order to promote the maintenance of or reestablishment to a suitable state of conservation of natural habitats and wild fauna and flora on the territory of the Member States. In order to achieve that objective, provision is made, inter alia, for the classification of special protection areas (‘SPAs’). Article 6(2) of the above directive requires the Member States to take appropriate measures to avoid, by any of their acts, the deterioration of sites and significant disturbance to the species for which sites were classified, while Article 6(3) provides that the Member States are required to submit any plan or project not directly linked or necessary to the management of a site but liable significantly to affect that site to due assessment of its impact on the site having regard to the conservation objectives of that site.

2

Poland is in the process of carrying out two road projects to bypass the towns of Augustów and Wasilków inside protected areas within the meaning of the abovementioned directives, in breach of Article 6(2) and (3), in conjunction with Article 7, of the Habitats Directive with regard to two Special Protection Areas (SPAs) and in breach of the system of protection which follows from the case-law in Dragaggi (C-117/03) and Bund Naturschutz (C-244/05) with regard to a potential site of Community importance (SCI). In addition, Poland has proposed a compensatory measure for the ecological losses suffered because of the implementation of the project for a bypass, to be built on a potential Site of Community Important (SCI), which is likely to harm the ecological features of that site, around the town of Augustów.

Dragaggi

Bund Naturschutz

With regard to the road project to bypass of the town of Augustów, its route is intended to cross the SPA Puszcza Augustowska and the potential SCI Ostoja Augustowska. The SPA forms the habitat of 41 species of birds listed in Annex I to the Birds Directive, while the site of Ostoja Augustowska contains 21 types of habitat listed in Annex I to the Habitats Directive. Furthermore, the latter site is the habitat of nine animal species and eight plant species listed in Annex II to the Habitats Directive, including a priority species, that is to say the wolf. The site of Ostoja Augustowska meets all the ecological criteria of Annex III of the Habitats Directive for proposal and subsequent classification as an SCI under that directive.

With regard to the road project to bypass of the town of Augustów

Puszcza Augustowska

Ostoja Augustowska

Ostoja Augustowska

Ostoja Augustowska

With regard to the scheme applicable to that project and to its impact on the SPA, it should be noted that its authorisation procedure began before the date of accession of Poland. The Commission takes the view, in accordance with the ruling in Case C-209/04 Commission v Austria, that the provisions of Article 6(3) and (4) of the Habitats Directive do not apply. However, the substantive provisions of that directive, in particular Article 6(2), apply from the time of accession. With regard to that project and its impact on the potential SCI, the Commission takes the view that their legal scheme does not differ from that indicated in the judgments in Dragaggi and Bund Naturschutz, the requirements for protection being identical. Moreover, that scheme applies from the time of accession of Poland to the European Union because it constitutes substantive obligations relating to the objective of the Habitats Directive; if the opposite were the case the result would be that the Member States would not be bound by the objectives of the Directive with regard to projects whose authorisation procedure had begun before the date of accession.

Commission

Austria

Dragaggi

Bund Naturschutz

The project in question damages habitats, disturbs species for which the SPA was classified and does not constitute a measure liable to safeguard the interests of the potential SCI at a national level. The project will cause irreversible harm and will lead to deterioration of the unique and exceptional ecosystem of the valley of the Rospuda river in terms of its impact on birds, habitats and species in need of protection within the meaning of Directives 79/409/EEC and 92/43/EEC. It must be noted that, at the time of the impact assessment of the Augustów bypass project on the Natura 2000 areas, the Polish authorities did not take appropriate account of alternative solutions. By having failed to show the lack of alternative solutions, the Polish authorities cannot rely on an overriding public interest in order to approve the project in question.

With regard to the road project to bypass of the town of Wasilków, its route is intended to cross the SPA Puszcza Knyszyńska which forms the habitat of 37 species of birds listed in Annex I of the Birds Directive. The authorisation procedure began before the accession of Poland to the European Union, and thus it is a project to which the procedural provisions in Article 6(3) and (4) apply. The impact assessment carried out for that project is defective from a number of points of view and does not constitute due assessment of the impact under Article 6(3) of the Habitats Directive. Furthermore, it must also be noted that the Polish authorities did not submit alternative solutions to the Wasilków bypass to the Commission and did not raise the question of compensatory measures with regard to the area which will be destroyed by that bypass.

With regard to the road project to bypass of the town of Wasilków

Puszcza Knyszyńska

The work has already begun; in particular, trees have already been felled.

The afforestation project to be carried out in the potential SCI of

  Pojezierze Sejneńskie

  as a compensatory measure for the ecological losses suffered in the areas affected by the Augustów bypass project not only fails to compensate for the ecological losses but also implies an adverse impact on the potential SCI. The site, which contains 15 types of habitat listed in Annex I to the Habitats Directive, meets all the ecological criteria of Annex III for proposal and subsequent classification as an SCI under that directive. The Commission has reliable information that two species included in Annexes II and IV to the abovementioned directive, that is to say the species Pulsatilla patens and the species Thesium ebracteatum, are present in that area. Furthermore, the area forms the habitat of six animal species and six plant species listed in Annex II to the Habitats Directive, including a priority species, that is to say the wolf. Part of the area of that priority habitat (approximately 17 hectares) and the habitats of two plant species listed in Annex II will be deforested as part of the measures envisaged by the project investor to compensate for the damage to the habitats caused by the construction of the Augustów bypass.

The afforestation project to be carried out in the potential SCI of

Pojezierze Sejneńskie

as a compensatory measure for the ecological losses suffered in the areas affected by the Augustów bypass project

Pulsatilla patens

Thesium ebracteatum

The Polish authorities have confirmed that they wish to complete this afforestation project by the end of next June at the latest. The Commission requests the Court to order that the work be suspended or that it not begin until delivery of the judgment in the main proceedings.

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(1)  OJ L 206, 22.7.1992, p. 7.

1

(2)  Directive 79/409/EEC on the conservation of wild birds (OJ L 103, 25.4.1979, p. 1).

2

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